There are three key legal documents found on websites:
- terms and conditions; and
The terms and conditions document sets out the terms of sale of goods or services. It applies to people who purchase the goods and services. Some common clauses include:
- a description of the goods and services provided;
- the process of paying for or cancelling an order;
- the business’ exchange and refund policy;
- what to do in the event of a dispute; and
- the limits of the business’ liability.
- doing anything unlawful;
- uploading private or personal information without a person’s consent, or anything that would constitute a breach of a person’s privacy;
- using your website to harass or defame someone;
- uploading viruses or any other behaviour that tampers with your website; and
- posting public links to your website that would make others think that a partnership or affiliation exists.
- music; and
If a person posts or comments on your website, they might be providing a broad licence to you, as the website owner, to use what they have shared. It is also possible that you own the content that has been posted, if you have drafted an IP clause to provide for that.
Your website may also have links to third-party websites. This may be through native content or paid partnerships. Even if there is a paid partnership, your website will only have control over its own content and functions.
Therefore, a third-party disclaimer will mean you are not liable for anything associated with the third-party links. In this case, the visitor is responsible for conducting any investigations into the suitability of the third-party links.
Limitations on Liability and Indemnity
- Click wrap agreements require a visitor to click on an “I Agree” box to indicate acceptance. Some click wrap agreements require the visitor to scroll to the bottom of the page before the “I Agree” box appears.
Reasonable notice and acceptance are easier to establish with click wrap agreements. This is because the visitor needs to go out of their way to accept the terms. However, this is not to say that browse wrap agreements are not enforceable. Although Australian courts are yet to consider this issue, a United States Supreme Court recently ruled that it is the responsibility of the visitor to read the terms before proceedings.
- third-party disclaimer;
- list of prohibited conduct;
- IP clause; and
- dispute resolution clause.
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